Washington, Bushrod

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Washington, Bushrod

Bushrod Washington served on the U.S. Supreme Court as an associate justice from 1798 to 1829. A strong Federalist and able jurist, Washington was tolerant and well-liked by other members of the bar. His reputation, though respectable, might shine more brightly today if it was not overshadowed by that of his contemporary and friend, Chief Justice John Marshall. Washington concurred with Marshall's opinions so often that jokes were made about them being one justice. Although he wrote a handful of significant opinions on contract law, Washington is remembered primarily as a stalwart supporter of the chief justice.

Born on June 5, 1762, in Westmoreland County, Virginia, Washington enjoyed the benefits of an aristocratic life. He was a nephew of George Washington, the nation's first president, and the two were close. He inherited the president's estate at Mount Vernon. Tutored at home in his childhood, Washington later attended the College of William and Mary, graduating in 1778. He studied law privately until 1781 and then served in the Revolutionary War. In 1784 he was admitted to the Virginia bar.

Washington first practiced law in Alexandria, Virginia, where he also became involved in politics. In these early years of the young lawyer's life, he specialized in chancery cases—typical lawsuits under the now-antiquated system of Equity law. Yet he had an eager mind and kept expanding the range of his experience. He became a keen supporter of Federalism, embracing its belief in strong federal government, and in 1787 won election to the Virginia House of Delegates. In 1788, as the nation was preparing to ratify the Constitution, he served as a delegate to Virginia's ratifying convention. By the late 1790s, Washington had established his own practice in Richmond, trained numerous lawyers, and written two enormous volumes of reports on cases as a recorder for the state's court of appeals. His legal and political experience prompted President John Adams to appoint him to the Supreme Court in 1798.

On the Court, Washington almost always followed the lead of Chief Justice Marshall. The two had been friends since their student days and shared political sympathies. Marshall, widely viewed as the greatest leader of the Court in history, was also an ardent judicial Federalist. Only three times did Washington vote differently from Marshall, and only once did he attach a concurring opinion to the chief justice's opinion. This was in dartmouth college v. woodward, 17 U.S. (4 Wheat.) 518, 4 L. Ed. 629 (1819), a landmark case that upheld the inviolability of contracts. Washington's cautious concurrence sought to limit the implications of the decision.

If the two men differed philosophically, it was only by degree. Washington wished to avoid conflicts with States' Rights whenever possible. He dissented only twice during thirty-one years on the Court. In fact, as a trusted supporter of the chief justice during the early tumultuous years of Marshall's tenure, he even went so far as to discourage his colleagues from writing dissents when ordinary issues were involved.

Washington also made independent contributions to the Court. He wrote the first part of the decision in Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 6 L. Ed. 606 (1827), which stated that any law passed before the execution of a contract is a valid part of that contract. He was noted for his fairness while "circuit riding"—traveling and performing the duties of a circuit judge, a routine though difficult task for Supreme Court justices in the early nineteenth century.

Washington died in Philadelphia on November 26, 1829.

"It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt."
—Bushrod Washington

Further readings

Faber, David A. 2000. "Justice Bushrod Washington and the Age of Discovery in American Law." West Virginia Law Review 102 (summer).

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References in periodicals archive ?
156) Letter from John Marshall to Bushrod Washington (May 28, 1822), in 9 MARSHALL PAPERS, supra note 123, at 203, 203.
157) Letter from John Marshall to Bushrod Washington (July 13, 1821), in 9 MARSHALL PAPERS, supra note 123, at 180, 180.
He is noted in the minutes and in Wheaton's Reports as present at the 1821 decision, and the minutes say he attended the 1822 reargument and the 1823 decision, yet at least one newspaper report of the 1823 decision states that "Marshall refused to sit,"(18) and the disappointed litigants speak of the Court as acting only by a three man plurality -- Bushrod Washington, Joseph Story, and Gabriel Duvall, without Marshall.
The Court's haste to act seemed evident when, after announcing the Court's decision in February 1823, Justice Bushrod Washington refused to release the opinion for another six months, holding the text under wraps until August 1823.
Letter to Bushrod Washington, November 10, 1787, WW, 29: 309-10.
This meant that Marshall's discussions with his fellow justices--chiefly Bushrod Washington (the president's nephew) and Justice Joseph Story--were frequently epistolary, as was his relationship with his wife, Polly, whom he ministered to tenderly and missed dearly.
I find myself more stimulated on this subject than on any other," he wrote to Bushrod Washington in McCulloch's aftermath, "because I beleive the design to be to injure the Judges & inpair the constitution.
In the review, Dwyer attacks Lincoln and Henry Clay for being proponents of sending blacks to colonize other countries, failing to mention altogether--like DiLorenzo--that Benjamin Franklin, Thomas Jefferson, James Madison, James Monroe, Bushrod Washington (nephew of George), Francis Scott Key, Daniel Webster, Stephen Douglas, John Randolph, John Marshall, General Winfield Scott, Roger Taney, and William Seward were too.
George Washington was an active participant in several lotteries; Thomas Jefferson relied on a public lottery to save Monticello; Bushrod Washington, Patrick Henry, George Mason and George Wythe served as lottery directors.
Critics of McCulloch, he wrote Justice Bushrod Washington, "have no objection to a decision in favor of the Bank since the good patriots who administer the government wished it, and would probably have been seriously offended with us had we dared to have decided otherwise.